Is the Fetus a Person?: A Comparison of Policies across the Fifty States / Edition 1

by Jean Schroedel

Overview

Without a doubt, the sharpest public debates over the value of fetal life have revolved around the conditions, if any, under which abortion should be legal. Yet the question of whether the fetus is or is not a person is central in two other policy domains: substance abuse by pregnant women and assaults on pregnant women, especially assaults that cause the death of a fetus.At first glance, all three issues seem similar—all ask the question of how the state should respond to actions that threaten or destroy fetal life. But the response of state and society to each has been very different: while the highly charged debate over abortion rights rages unabated, the other two issues engender no such social or political divisions. And while drug use and third-party fetal killings are universally condemned, "fetal abuse" is a term used only to describe harm that a pregnant woman brings to her own fetus, and not harm brought to it by a third party. Similarly, a great deal of media attention has been paid to such "fetal abuse," while the question of third-party harm has been all but ignored.Is the Fetus a Person? analyzes fetal personhood by examining all of the major areas of the law that could implicitly or explicitly award the fetus such status. Jean Reith Schroedel presents a comprehensive history of fetal protection ideas and policies in America, considering the moral and legal underpinnings of existing laws while paying particular attention to the influence of gender and power relations on their formation. As much a model for future research as a study of the status of the fetus, this book offers an extraordinary examination of one of the most divisive and complex issues of late-twentieth-century American life.

Product Details

ISBN-13:	9780801437076
Publisher:	Cornell University Press
Publication date:	07/15/2000
Edition description:	Reprint
Pages:	240
Product dimensions:	6.12(w) x 9.25(h) x 0.81(d)
Age Range:	18 Years

About the Author

Jean Reith Schroedel is Professor in the Department of Politics and Policy and the Applied Women's Studies Program at Claremont Graduate University

Table of Contents

	Preface	xi
Part I.	Background and Overview
1.	Introduction	1
	Framing the Issue of Fetal Personhood	3
	The Debate over Fetal Personhood	5
	Legal Status of the Fetus	7
	The Research Design	8
	Organization of the Book	14
2.	Fetal Personhood through the Centuries	16
	The Moral and Legal Dimensions of Fetal Status	17
	The Early Moral Discourse	17
	The Christian Church's Opposition to Abortion	18
	The Impact of Moral Beliefs on Legal Developments	20
	Fetal Status in Antebellum America	24
	Changes in Nineteenth-Century Legal Doctrine	26
	The Movement to Criminalize Abortion	27
	Changes in the Legal Status of the Fetus in Civil Cases	31
	The Criminalization of Third-Party Fetal Killing	34
	The Movement to Reform Abortion Laws	35
	Expansion of Fetal Rights	44
	Applying the Adversarial Lens to the Other Fetal Policy Areas	47
	The Problem of Substance Abuse by Pregnant Women	48
	Summary	55
Part II.	Interpreting the Patterns
3.	Abortion Policymaking in the States	57
	The Policy Framework	57
	Morality Policy as Social Regulation and the Redistribution of Values	58
	Applying the Morality Policy Framework to Fetal Policies	59
	Abortion Policymaking	62
	State Laws Banning Abortion	66
	The Shift toward Enacting Limited Abortion Bans	68
	Overall Restrictiveness of Abortion Bans	75
	Post-Roe Restrictions on Abortion	76
	Restrictions on Adult Women	80
	Restrictions on Minors	92
	Measuring the Overall Restrictiveness of Abortion Laws	96
	Summary	99
4.	Prenatal Drug Exposure and Third-Party Fetal Killings	100
	One-Sided Morality Policymaking and Fetal Status	100
	Policy Responses to Substance Abuse by Pregnant Women	101
	Legislative Responses to the Problem of Prenatal Drug Exposure	105
	Criminal Prosecution of Pregnant Addicts	113
	Policy Responses to Third-Party Fetal Assaults and Killings	120
	Legislative Responses to Third-Party Fetal Assaults and Killings	125
	Third-Party Fetal Killing Statutes	126
	Judicial Responses to Third-Party Fetal Killings	131
	Summary	136
5.	Explaining Fetal Policies across the States	138
	Searching for the Common Thread in Fetal Policies	138
	Public Opinion and State Abortion Policies	139
	Public Opinion and State Policies toward Prenatal Drug Exposure	142
	Public Opinion and Policies toward Third-Party Fetal Killing	143
	Summing Up the Impact of Public Opinion	144
	Assessing the Fetal Rights and Women's Rights Narratives	145
	Modeling Abortion Policymaking in the States	158
	Summary	162
6.	Where Do We Go from Here?	165
	Federalism and Fetal Personhood	165
	The States'-Rights Approach to Fetal Personhood	167
	New Assaults on Abortion Rights	168
	New Efforts to Expand Fetal Rights/Personhood	171
	Enormous Disparities in Legal Status of the Fetus	183
	The Link between Fetal Rights and the Antiabortion Movement	185
	An Opportunity to Find Common Ground	188
	References	191
	List of Cases	211
	Subject Index	215
	Legal Index	221

What People are Saying About This

Deborah Stone

"This unique book takes a broad and inclusive sweep, covering abortion laws, drug abuse/narcotic exposure laws, fetal battering, tort law on fetal harm, civil detention of pregnant women, fetal tissue research, and more. Jean Schroedel takes a creative leap to show how these policies and practices are all related and should be examined through the same lens, as responses to the same real-world problem (the well-being of vulnerable people). An excellent book."

Ida Roy

"The background on the legislative problem as well as the amount and quality of data by itself make Schroedel's book an excellent primer for those interested in working on abortion legislation and policy in the years to come... Schroedel's book should be considered basic reading for anyone interested in the ethics and politics of abortion."

William Claiborne

"States with the strongest antiabortion laws generally are among the states that spend less on needy children and are less likely to criminalize the battering or killing of fetuses in pregnant women by a third party, according to a provocative new study. The study, the first of its kind... says that states with strong antiabortion laws provide less funding per child for foster care, stipends for parents who adopt children with special needs, and payments for poor women with dependent children than do states with strong abortion rights laws.... 'To put it simply, pro-life states make it difficult for women to have abortions, but they do not help these women provide for the children once born, ' Schroedel said."

From the Publisher

"One of the favorite tactics of pro-lifers is to accuse abortion rights supporters of being anti-child, hyperindividualistic, unwilling to protect the vulnerable and generally in favor of 'death.' The truth is almost the opposite. Jean Reith Schroedel's book supports the pro-choice quip that anti-choicers' concern for children begins with conception and ends with birth, finding 'virtually no support' for the antiabortion claim that opposition to abortion is all about caring for kids. Empirical research is a wonderful thing."

March 2001 Choice

"Neither the title nor the jacket design does justice to this book... Schroedel concludes... that fetal protection policies are really about controlling women... This book should be required reading for the US Supreme Court as it enters the fray this term in Ferguson v. Charleston. A timely, important, and highly recommended book."

Editorial Reviews

Jean Reith Schroedel's provocative and well-researched book tests the rhetoric of the prolife movement, which focuses on the protection of the most vulnerable among us, and the rhetoric of the prochoice movement, which focuses on the protection of women's equality and autonomy. By examining the degree to which antiabortion forces also support other measures to enhance the well-being of fetuses and infants, Schroedel concludes that their motivations are better explained by a resistance to female autonomy... Schroedel's book develops important evidence for the claim that this battle will not be won or lost by our regard for fetal life, but rather by our regard for women's equality and the obligations of all people, men and women, to make sacrifices for others.

D - R. Alta charo

"Schroedel, a professor of politics and policy, offers a demanding but quite valuable analysis of how different states address the issues of whether the fetus has legal protected 'personhood.' "—Mary Carroll. Booklist. July 2000.

"A thoughtful legal and philosophical examination of the problem of fetal personhood, with implications for public policy and criminal law. . . . A well-researched and well-reasoned contribution to our continuing and contentious national conversation on fetal personhood and abortion laws."—Kirkus Reviews, August 2000.

"Neither the title nor the jacket design does justice to this book. . . Schroedel concludes. . . that fetal protection policies are really about controlling women. . . This book should be required reading for the US Supreme Court as it enters the fray this term in Ferguson v. Charleston. A timely, important, and highly recommended book."—Choice, March 2001

"Jean Reith Schroedel's provocative and well-researched book tests the rhetoric of the prolife movement, which focuses on the protection of the most vulnerable among us, and the rhetoric of the prochoice movement, which focuses on the protection of women's equality and autonomy. By examining the degree to which antiabortion forces also support other measures to enhance the well-being of fetuses and infants, Schroedel concludes that their motivations are better explained by a resistance to female autonomy. . . Schroedel's book develops important evidence for the claim that this battle will not be won or lost by our regard for fetal life, but rather by our regard for women's equality and the obligations of all people, men and women, to make sacrifices for others."—R. Alta charo, J.D., University of Wisconsin. The New England Journal of Medicine. Vol. 343, No. 23

"States with the strongest antiabortion laws generally are among the states that spend less on needy children and are less likely to criminalize the battering or killing of fetuses in pregnant women by a third party, according to a provocative new study. The study, the first of its kind . . . says that states with strong antiabortion laws provide less funding per child for foster care, stipends for parents who adopt children with special needs, and payments for poor women with dependent children than do states with strong abortion rights laws. . . . 'To put it simply, pro-life states make it difficult for women to have abortions, but they do not help these women provide for the children once born, ' Schroedel said."—William Claiborne, The Washington Post. October 9, 1999.

"The background on the legislative problem as well as the amount and quality of data by itself make Schroedel's book an excellent primer for those interested in working on abortion legislation and policy in the years to come. . . Schroedel's book should be considered basic reading for anyone interested in the ethics and politics of abortion."—Ida Roy, University of Pennsylvania. Theoretical Medicine Vol. 22, 2001

"One of the favorite tactics of pro-lifers is to accuse abortion rights supporters of being anti-child, hyperindividualistic, unwilling to protect the vulnerable and generally in favor of 'death.' The truth is almost the opposite. Jean Reith Schroedel's book supports the pro-choice quip that anti-choicers' concern for children begins with conception and ends with birth, finding 'virtually no support' for the antiabortion claim that opposition to abortion is all about caring for kids. Empirical research is a wonderful thing."—Katha Pollitt

"This unique book takes a broad and inclusive sweep, covering abortion laws, drug abuse/narcotic exposure laws, fetal battering, tort law on fetal harm, civil detention of pregnant women, fetal tissue research, and more. Jean Schroedel takes a creative leap to show how these policies and practices are all related and should be examined through the same lens, as responses to the same real-world problem (the well-being of vulnerable people). An excellent book."—Deborah Stone, author of Policy Paradox: The Art of Political Decision Making

From the Publisher

Many scholars have noted that there appears to be a higher degree of sacrifice forced on pregnant women than on the fathers and mothers of children already born, even when such children were expected, wanted, and deliberately conceived. This difference in notions of parental duty, many argue, is evidence that the underlying motivation is not so much concern about the well-being of the fetus or child as it is disapproval of pregnant women's choices. If the states imposed a higher duty on parents to sacrifice themselves for their children, a similar degree of sacrifice by pregnant women for their still nonsentient fetuses might be in order.

Schroedel's book develops important evidence for the claim that this battle will not be won or lost by our regard for fetal life, but rather by our regard for women's equality and the obligations of all people, men and women, to make sacrifices for others.

New England Journal Of Medicine

In a comparative study of States' fetal rights policies, Schroedel (politics and policy, Claremont Graduate U.) ventures beyond the controversial Roe vs. Wade US Supreme Court decision upholding the legality of abortion to examine laws pertaining to fetal abuse via prenatal drug exposure and third-party killings. She points out the disparities between the States and inconsistencies within State laws. Includes a list of cases and legal case index. Annotation c. Book News, Inc., Portland, OR (booknews.com)

Booknews

From Schroedel (Policy and Politics/Claremont Graduate School), a thoughtful legal and philosophical examination of the problem of fetal personhood, with implications for public policy and criminal law.

Kirkus Reviews